Guidelines • Examination of Plaintiff • Personal Injury
An Examination for Discovery is an important step in a lawsuit in which the lawyer for the opposing side asks you questions under oath about the facts relating to the lawsuit. It is important that the facts, as you understand them, come out as clearly and accurately as possible.
Rules for a successful examination
When preparing for the Examination, review any statements given to the insurer or the police and the injuries stated in the Statement of Claim, making note of any errors, omissions or further details required.
Pay attention. Listen to the question being asked. Answer that question directly and clearly. Take your time. If you do not understand a question, ask that it be explained.
Tell the truth and answer honestly to the best of your ability. Even the most skilled cross-examiner cannot hurt you if you tell the truth. If you cannot remember a certain fact asked of you, state that you are unable to remember it at this time. Do not speculate or guess. If you inadvertently answer a question incorrectly, speak up and correct it.
Stick to the facts. Do not use this as an opportunity to give your opinion or vent your feelings about the other party. Never lose your temper. Don’t let words be put in your mouth, ie. “discomfort” instead of “pain”.
Be specific about your injuries and your pain. Be careful not to forget less obvious injuries, etc. anxiety, depression and injuries to jaw, hands and feet which are often forgotten. Neither exaggerate nor downplay your injuries, pain or losses. Remind yourself and the questioner, if necessary, that you are not a doctor.
Recall activities you cannot do and why, making note of those you have tried or are doing with pain. Remember that the insurer may have information about you from other persons including employers and acquaintances.
Be frank about income loss, even tips or earnings which you did not report to the Canada Revenue Agency.
List all your expenses ie. mileage (for you or someone who has been driving you), babysitting, cleaning help – even if these services have come from family members.
Let the questioner finish his/her question before you begin your answer. Do not interrupt. Your lawyer will make any necessary objections and in doing so inform you why the question is inappropriate and whether and how it should be answered.
Do not argue with the questioner. Do not be offended or upset by the questions, ie. that you are not telling the truth. The questioner is merely trying to throw you off your guard and to get hasty answers.
There will be a claims adjuster and / or senior adjuster present. Often the insurer’s counsel will also be there.
The claims adjuster knows your file by handling it over time.
The senior adjuster is the player who normally decides what the insurer will offer. The senior adjuster’s knowledge of your file tends to be recent.
The insurer’s counsel advises the insurer. He or she often plays the role of “challenger”.
The mediator is a referee. The mediator’s job is to “referee” the discussions, and to assist us towards settlement if possible.
The mediator is not a judge. The mediator cannot decide who is right or impose a decision on us (the case will only settle if we and the insurer agree to settle).
The mediator is not our pal, or on our side. The mediator is neutral, with his/her only goal being to urge us to settle (and is not particularly involved in whether it is an appropriate settlement).
The mediator may comment on the risks of trial.
The mediator will invite me to explain our position briefly, then the insurer will often respond. Next the insurer representative will usually ask you questions. Answer the questions clearly and directly.
The mediator will likely choose to speak with the insurer representative (or with us) privately. This is normal, and should not be a cause for concern. This is called a “caucus”.
When we are in caucus with the mediator, we need to be clear with the mediator that what we say is “confidential” and should not be repeated to the other party without our agreement.
Nevertheless, you should recognize that the mediator will use what he or she learns in caucus to pursue their objective of settlement. This may indirectly affect the course or result of the mediation, and may obliquely be communicated to the other party. This is part of the dynamic of mediation. However, it means that you cannot speak “freely” in front of the mediator.
If there is an offer or proposal, it is best if we discuss it privately before responding even in caucus. Do not show emotion when there is an offer. Expect that any first offer will be “low”.
There will be much discussion of the risks to each party in going to trial.
Mediation is a “privileged” occasion; and what is said there will not be used in cross-examination in the future. But you need to be aware that the insurer is taking your “measure” as a witness, and assessing your credibility. The insurer will also make decisions, based upon what is learned, about future handling of your claim.
You need to present yourself as a reliable, courteous witness. This applies to dress as well as to what you say and do.
The insurer representatives may say things that you disagree with, that you do not like, or that you find insulting. Allow them to say their piece. Do not get angry or sarcastic. Stay calm and polite if the insurer representatives play “good cop / bad cop”.